Director of Public Prosecutions v Bardin (a pseudonym)

[2024] VCC 1461

IN THE COUNTY COURT OF VICTORIA

AT WARRNAMBOOL

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

THE DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
KEN BARDIN (A PSEUDONYM)	Defence

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	WARRNAMBOOL
DATE OF HEARING:	13 September 2024
DATE OF SENTENCE:	17 September 2024
CASE MAY BE CITED AS:	DPP v Bardin (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1461

SENTENCE
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Subject:Possess child abuse material obtained using a carriage service

Catchwords:              Guilty plea – 133 images of category 2 child abuse material – low end offending – 25-year-old offender – no criminal record – autism spectrum disorder – reduced moral culpability

Legislation Cited: Section 20(1)(b)(ii) and (iii) Crimes Act 1914; Section 16A(2AAA) of the Crimes Act 1958 (Vic).

Cases Cited:Garside (2016) 50 VR 800; De Leeuw [2015] NSWCCA 183; Phibbs [2023] VSCA 123; Edwards [2019] QCA 15; DPP (Commonwealth) v Zarb (2014) 46 VR 832; DPP (Commonwealth) v Simon Luke Adams [2022] VCC 1671; DPP (Commonwealth) v Riley Costas (a pseudonym) [2023] VCC 1093; R v Pham (2015) 256 CLR 550; Bredal [2024] NSWCCA 75; Elliot v Harris (No 2) [1976] 13 SASR 516.

Sentence:Six months imprisonment; immediate release on reconnaissance to be of good behaviour for 18 months

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr B Stevens	Commonwealth Director of Public Prosecutions
For the Defence	Ms A Hurst	Victoria Legal Aid

HIS HONOUR:

1Ken Bardin[1], you have pleaded guilty to one charge of possess or control child abuse material obtained or accessed using a carriage service contrary to sub-section 474.22A(1) of the Commonwealth Criminal Code.

[1] A pseudonym

2The maximum penalty for the offence is 15 years' imprisonment.

Circumstances of offending [2]

[2] Exhibit A: Summary of Prosecution Opening for Plea dated 10 April 2024.

3On 18 July 2023, police attended your home at Warrnambool with a search warrant.

4When they told you they were looking for child abuse material, you told them they would find images on your digital devices.

5You said:

(a)   You understood child abuse material to be ‘pornography involving children’;

(b)   You had been ‘trying’ for ‘months’ to stop looking at the material;

(c)   You first started looking at the material four to five years earlier;

(d)   You were sexually aroused by it; and

(e)   You felt ‘guilty’ for looking at the material but continued because it ‘felt good’.

6They seized two laptop computers from you.  You provided your passcodes for them.

7On one laptop there was one image which depicted a real female, approximately 14 to 17 years old, with her legs in the air and spread apart.  She was wearing a small red G string with her left breast exposed.

8On the other, there were 133 cartoon images which depicted prepubescent females engaged in sexual activity ranging from exposing genitals and breasts to penis to vagina and penis to mouth penetration.

9All images fall into category two of the Interpol baseline categorisation system for classification of child sexual abuse material.

Procedural chronology

10Police charged you with offences related to the child abuse material on your devices.

11On 15 March 2024, at a committal mention, you entered your guilty plea.

Objective gravity of offending

12Accessing or possessing child pornography is not a victimless crime.  It is abhorrent because it supports a market for the production of images that involve the corruption and sexual exploitation of children. [3]

[3] Garside (2016) 50 VR 800, [19] – [25]; De Leeuw [2015] NSWCCA 183, [72]; Phibbs [2023] VSCA 123, [51].

13All but one of the images you possessed was anime.  They did not involve a real child.  Nevertheless, anime may encourage recipients to take a step further, moving from the cartoon world to the real world. Anime is not harmless.  It is simply different from other categories. [4]

[4] Edwards [2019] QCA 15.

14You possessed a relatively small number of images.

15There is no evidence you shared them with anyone else or that you profited from them in any way.

16Overall, your offending was at the low end of the spectrum of seriousness.

Criminal record

17You have no criminal record.

Personal circumstances [5]

[5] Your personal circumstances are set out in reports of Dr Janine Bounds (Psychologist) (exhibits four and seven); Martin Jackson (Neuropsychologist) (Exhibit 3) and Dr Donal Hanratty, (Psychiatrist) (Exhibit 2) and your mother’s letter (Exhibit 13).

18You were born in 1998.

19Your birth was traumatic and premature.  Your mother was then 16 years old.

20When you were five months old, she ended her relationship with your father who had a drug addiction.

21She raised you through your early years on her own.

22When you were three years old, she married Chris. [6]  And when you were six, your younger brother, Wilbur[7], was born.

[6] A pseudonym.

[7] A pseudonym.

23The four of you lived together as a family until you were 14 years old when Chris left for another woman.  Your mother moved Wilbur and you into a rental home.

24You attended local schools until Year 12.  You were very quiet at school.  Your major interests were computer games and play station.

25When you left school, you moved into a share house, largely to get away from your disruptive younger brother, with boys you knew at school.  You spent a lot of time in your bedroom, and you needed your mother to help you leave the house to get groceries.

26Your younger brother had earlier been diagnosed with autism spectrum disorder. Your mother took steps to have you assessed.

27In early 2018, Dr Janine Bounds comprehensively assessed you.  You were strong in visual-spatial and reasoning tasks.  Your verbal working memory was poor.

28Dr Bounds reported, 'Ken basically just likes to be very quiet and keep out of everyone’s “radar”.  He does not socialise easily and he has very poor social communication skills'. [8]

[8] Initial Assessment Report of Dr Janine Bounds (Psychologist) (Exhibit 7), page 17.

29In her opinion, you met the diagnosis of autism spectrum disorder and you also had very high anxiety. [9]

[9] Ibid, page 18.

30In 2019, a psychiatrist,[10] Dr Ranitha Ranasinghe, confirmed the diagnosis.  She also diagnosed you with mixed anxiety and depressive disorder.  You were suffering severe anxiety symptoms, leading to agoraphobia, which she treated with fluoxetine.

[10] Report of Dr Rohitha Ranasinghe (Treating Psychiatrist) dated 11 October 2019 (Exhibit 5).

31You worked in a café, where your mother worked, for six months.   Since, you have been in receipt of a disability support pension.

32You have continued to live independently with considerable help from your mother and stepfather.  You also have the support of your GP, [11] a psychologist, [12]  a youth development coach,[13] a disability employment consultant,[14] and an occupational therapist. [15]

[11] Letter of Dr Teong Ken Chuah (GP) dated 13 June 2024 (Exhibit 8).

[12] Letter of Samantha Jolley (Psychologist) dated 1 August 2024 (Exhibit 11).

[13] Letter of Prudence Lilani (Youth Development Coach) dated 19 June 2024 (Exhibit 9).

[14] Letter of Kasey Tory (Disability Employment Consultant) dated 26 July 2026 (Exhibit 10).

[15] Occupational Therapy Functional Assessment Report of Ashley Pedersen dated 10 December 2019 (Exhibit 6).

33In February 2024, Dr Bounds reassessed you.  She reported [16] your ASD diagnosis gave you more understanding of your situation, but unfortunately there was very little change in your life struggles.

[16] Report of Mr Martin Jackson (Neuropsychologist) dated 17 July 2024 (Exhibit 4), page 3. 

34You have severe symptoms of anxiety and depression.  You struggle with regular hygiene.  You need support to go to your doctor.  You do not talk on your mobile phone; to communicate, you only use the text facility. And you almost never leave your house.

35In Dr Bounds' opinion, your social and emotional functioning and sexual maturity is lagging behind your chronological age.

36A neuropsychologist, Martin Jackson, assessed you on 3 July 2024.   In his opinion, you do not have any neuropsychological impairment, but you do have significant behavioural and social impairments, [17]  which impact your capacity to understand the wrongfulness of your actions and to make calm and reasoned decisions. [18]

[17] Due to either a neurodevelopmental disorder (ASD) or personality disorder (schizoid personality disorder).

[18] Report of Mr Martin Jackson (Neuropsychologist) dated 17 July 2024, at page 17 (Exhibit 3).

37A forensic psychiatrist, Dr Donal Hanratty, assessed you on 5 August 2024. [19]

[19] Report of Dr Donal Hanratty (Forensic Psychiatrist) dated 15 August 2024 (Exhibit 2).

38You told Dr Hanratty you had your first sexual experience when you were 20, with a girl the same age.  You dated for about four months.  She lived about an hour away from you.  Because you suffer severe travel sickness, it was hard to go to see her, so you ended the relationship.

39You said you had two other sexual partners around 2020 or 2021.  The night before you were arrested you had a date with a young woman you met online.  You said she came to your place and you watched TV together.

40You told Dr Hanratty that you had been watching adult pornography since you were a teenager and, around age 18 or 19, you 'stumbled across' child pornography.  You said you watched non-anime and anime child pornography. However, it never replaced your usual preference for watching adult pornography. You said you had not watched any child pornography since your arrest.

41You denied any deviant sexual interests or fantasies.

42In Dr Hanratty’s opinion, at the time of your offending, you were experiencing autism spectrum disorder, generalised anxiety disorder and panic disorder which made it difficult for you to leave the house, meet adult female partners and get your sexual needs met in a more prosocial way.  He believes, because they created an environment 'where resorting to pornography, in the isolation of [your] bedroom, was desirable for you, your disorders contributed to your offending, but did not cause it'. [20]

[20] ibid, [103].

43In his opinion, because of your relatively youthful age, your lack of any prior criminal history, your bail compliance and a lack of contact sexual offence history, you are very unlikely to commit a contact sexual offence in the future and unlikely to commit a further noncontact sexual offence. [21]

[21] ibid, [108] and [109].

44He believes your avoidance of substances, supportive family [22] and engagement with NDIS supports and other workers, are protective factors for your rehabilitation.

[22] Your step father also provided a supportive reference for you (Exhibit 12).

45He recommends treatment to target your autism spectrum disorder and anxiety to alleviate the ‘loneliness, isolation and lack of intimacy’, which contributed to your offending.

46In Dr Hanratty’s opinion, the stress of prison would exacerbate your anxiety and ASD.  Accordingly, you would find prison more burdensome than for someone without your mental health issues.  He also believes your disorders would deteriorate if you were removed from your home environment and placed in prison. [23]

[23] Report of Dr Donal Hanratty (Forensic Psychiatrist) dated 15 August 2024 (Exhibit 2), ibid, [114] and [115].

Defence Submissions

47Ordinarily, persons who commit child pornography offences will be sentenced to an immediate term of imprisonment. [24]

[24] DPP (Cth) v Zarb (2014) 46 VR 832, [27]; Garside, [25], [62].

48Your counsel, Ms Hurst, accepted a prison sentence is the appropriate sentence in your case.

49Under federal law, a person, who is convicted of a Commonwealth child sex offence, must serve at least a portion of a sentence of imprisonment which is imposed, unless the court is satisfied there are exceptional circumstances. [25]

[25] Section 20(1)(b)(ii) and (iii) Crimes Act 1914.

50In support of her submission, I should be satisfied there are exceptional circumstances to justify your immediate release on recognisance, she relied on a combination of factors, namely:

(a)   your early guilty plea and remorse;

(b)   your relative youth;

(c)   your lack of any criminal record; and

(d)   your poor mental health. [26]

[26] See written submissions (Exhibit 1).

51Ms Hurst referred me to two sentences where a judge of this court imposed a suspended sentence for possession of child abuse material [27]

[27] DPP (Commonwealth) v Simon Luke Adams (Judge Carmody) [2022] VCC 1671; DPP (Commonwealth) v Riley Costas (a pseudonym) (Judge Mullaly) [2023] VCC 1093.

Prosecution submissions

52The prosecutor, Mr Stevens, submitted, [28]  because of the seriousness of online child sex offending, the only appropriate sentence is a term of imprisonment.

[28] Sentencing Submissions dated 5 August 2022 (Exhibit B).

53He accepted:

(a)   you were co-operative with investigating police;

(b)   you made your guilty plea at the earliest opportunity;

(c)   your plea demonstrates acceptance of responsibility and a willingness to facilitate the course of justice;

(d)   you are remorseful;

(e)   your ASD created an environment which indirectly contributed to your offending; and

(f)    your poor mental health will make prison harder for you than a person in normal health and will likely deteriorate in prison.

54He provided me with a helpful table of intermediate appellate sentences for accessing or possessing child abuse or child pornography material offences. [29]

[29] Annexure A to Summary of prosecution opening (Exhibit A).

55I have regard to the comparable cases [30] to guide me in the relevant sentencing principles and to identify a range of sentences against which to examine your sentence. [31]

[30] Table of Comparative Cases filed by the Prosecution.

[31] R v Pham (2015) 256 CLR 550, [26].

Consideration

56By s16A of the Crimes Act1914 (Cth), I am required to impose a sentence that is of a severity that is appropriate in all the circumstances of your offending.

57

I am also required to have regard to the non-exhaustive list of matters in

sub-section 16A(2) of the Crimes Act1914 (Cth) as far as they are relevant and known to the court.

58Because of the seriousness of your offending, a sentence of imprisonment is the only appropriate sentence in your case.

59There are significant subjective factors which mitigate the sentence I shall impose.

60You were co-operative with investigating police.  You immediately admitted your wrongdoing to and gave police the passcodes to access the illicit material on your devices.

61You entered your guilty plea at the first opportunity.  In addition to its utilitarian value, it demonstrates your willingness to facilitate the course of justice, and your remorse.

62Since your arrest, you have adhered to bail conditions which substantially restricted your use of digital devices and access to the Internet.  There was a carve-out to enable you to access PlayStation games with police approval.  I was told you regularly contacted police to ensure you were compliant.

63You have ASD as well as anxiety and depression which have been exacerbated by this prosecution.

64It appears, when you offended, your ASD was not being properly treated.  As a result, you were in an isolated environment which indirectly contributed to your offending.

65You have several NDIA funded supports to help you to deal with the struggles of your autism and to improve your life skills.  Improvements will reduce the risk of you reoffending.

66Your rehabilitation is an important sentencing factor. [32]

[32] S 16A(2AAA) of the Crimes Act 1958 (Vic).

67You are relatively young and, to a degree, immature.  The index crime is your only offending.  You did not appreciate the harm of your offending until police explained it to you.

68I accept your arrest, charge and prosecution has been a salutary experience and, with appropriate supports, you are unlikely to reoffend.

69Yours was low-end offending of the type and I accept, because of your ASD, your moral culpability is reduced, and less weight is to be attached to general and specific deterrence.

70I also accept your ASD will make prison harder for you than a person in normal health and, in the stressful prison environment, it would likely deteriorate.

71Overall, I am satisfied the low-end nature of your offending, together with your co-operation with police and your guilty plea, your age and immaturity, your lack of prior convictions, and the impact of your ASD, in combination [33] constitute exceptional circumstances sufficient to warrant the complete suspension of the sentence of imprisonment I will impose.

[33] Bredal [2024] NSWCCA 75, [55] – [64]

72It is not to be forgotten a suspended sentence remains a sentence of imprisonment which involves real punishment. [34]

[34] Ibid, [64]; see Elliot v Harris (No 2) [1976] 13 SASR 516 at 527, per Bray CJ.

73By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation.

74Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of possessing child abuse material you are sentenced to six months' imprisonment which is to commence today.

75I order your release forthwith upon you giving recognisance of $1,000 to comply with the conditions that you:

(a)   be of good behaviour for a period of 18 months;

(b)   be subject to the supervision of a probation officer for a period of 18 months;

(c)   obey all reasonable directions of the probation officer;

(d)   not travel interstate or overseas without the written permission of the probation officer;

(e)   undertake such treatment or rehabilitation programs that the probation officer reasonably directs;

(f)    report to the Warrnambool Community Corrections Centre within two clear working days of today;

(g)   report to, and receive visits from, a Community Corrections officer or officers; and

(h)   notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change.

76This means:

(a)   you will be released today;

(b)   the conditions of the recognisance are that you be of good behaviour for 18 months, in addition to the other conditions I have set out relating to your obligations to the probation officer who will supervise your recognisance;

(c)   if you fail, without reasonable excuse, to fulfil the conditions of your order you will be liable to be:

(i)fined for the breach; and

(ii)imprisoned for the period of six months which you would have otherwise served in the community.

77While there is some artificiality in the process, I declare, but for your plea of guilty, I would have imposed a sentence of 12 months' imprisonment and ordered your release after serving six months.

Sex offender registration

78The federal offence of possess child abuse material is a class 2 registrable offence under the Sex Offenders Registration Act 2004 ('the Act').

79By operation of the Act, you are now a registered sex offender.

80The applicable reporting period is eight years. 

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